Just How Similar Are Radiohead's 'Creep' and Lana Del Rey's 'Get Free'?

Update: Radiohead's publisher has provided Esquire.com with the following statement in regards to the similarities between "Creep" and Lana Del Rey's "Get Free": “As Radiohead’s music publisher, it’s true that we’ve been in discussions since August of last year with Lana Del Rey’s representatives. It’s clear that the verses of ‘Get Free’ use musical elements found in the verses of ‘Creep’ and we’ve requested that this be acknowledged in favour of all writers of ‘Creep’. To set the record straight, no lawsuit has been issued and Radiohead have not said they “will only accept 100%” of the publishing of ‘Get Free’.”

Original story below:

On Sunday, after a report emerged of a potential lawsuit being brought against her by the band Radiohead, singer Lana Del Rey confirmed the story in a tweet. The song in question—“Get Free”, from her album Lust for Life, released this summer—is said to bear a striking similarity to “Creep” the band’s 1992 breakthrough single.

The controversy comes as a raft of popular artists like Ed Sheeran, The Chainsmokers, Mark Ronson, Bruno Mars, and others have gone back and added songwriting credits after the fact to hits of their own that were alleged to borrow from other songs, either to settle or avoid the hassles of a lawsuit.

As of Tuesday morning, no actual complaint had been filed in U.S. courts over the song, and Radiohead have declined to comment. So, it’s not exactly clear if there is an actual lawsuit forthcoming, or if it’s just a matter of lawyers for either party jockeying for position. Also unclear is that if it were to go to trial—as in the case of the most high profile example of copyright dispute in recent years between the estate of Marvin Gaye and Robin Thicke and Pharrell Williams—whether or not the allegation of infringement could be proven. The truth is, if you ask music industry and legal experts who follow these sorts of cases, no one really knows where the line of copyright infringement even is anymore.

As the story develops, we spoke with a number of legal and musical experts about the songs and what could come of another possibly huge copyright case in the industry.

Are the songs actually all that similar?

Very much so, says Bonnie Hayes, chair of the songwriting department at Berklee College of Music. “The two main sections are identical.” While Radiohead’s “Creep” (in the key of G) is essentially the same chords throughout the entire song, a significant part of Del Rey’s (in the key of B flat) mimics that progression.

It’s not just the chord progression, which isn’t technically subject to copyright, that evokes similarities here however. It’s the relative uniqueness of the type of deviation from the norm that causes the similarities to the ear. Without getting too technical, two chords in each song are ones that aren’t typically found within the key. In Radiohead’s case, that’s a b7 and a c minor.

“Those two chords are so distinctive,” Hayes says. “Most of the songs on the radio stay within the diatonic, a major scale, and aren’t very adventurous in going out of the key. When you use these chords that leave the key you get a real identifiable sonic fingerprint. When you hear it in a pop song it’s so distinctive you connect it to another song.”

Del Rey’s song does the same thing. It’s what gives both songs their emotional resonance and sense of alienation. Essentially, Hayes says, it’s two chords that “don’t belong here.”

Yes, they did! The song is actually credited as written by Radiohead and Albert Hammond and Mike Hazlewood, the songwriters of the 1972 The Hollies hit “The Air That I Breathe.” That song, again, utilizes that technique of stepping outside of the key. It is ironic indeed, as many have noted, that Radiohead would sue someone for “stealing” a song that they themselves had to relinquish part of the credit for, but at the moment we only have Del Rey’s statements on the matter as confirmation. It does seem somewhat out of character for the band’s artistic and forward-thinking persona, but money is, at the end of the day, money.

I thought chord progressions weren’t copyrightable?

Melodies and lyrics are subject to copyright, but not chord progressions, or titles for that matter, which is part of what makes this whole situation so confusing.

You can’t copyright a blues progression, for example, says Charles Cronin, of the University of Southern California Law School. “They're standardized, just generic musical elements.”

And besides, The Hollies weren’t even the first to use these chords, never mind Radiohead, says renowned musicologist Edward Michael Harrington, who has served as an expert witness in a number of high profile copyright cases like these. He traces it back to Elvis’ “That’s When Your Heartache Begins” or further to Jimmy Witherspoon’s “Aint Nobody’s Business.”

Some have taken to doctoring fake quotes and attributing them to Thom Yorke. Others have called the band, who’ve sold tens of millions of albums, and remain one of the most popular and boundary-pushing acts in music, washed up. That is also an allegation that probably would not hold up in court.

What will happen if it goes to trial? Do they have a case?

In all likelihood, it won’t go to trial, which is why Del Rey has been saying she’s trying to reach a settlement with the band. Even for rock stars, trials like these can be lengthy and very expensive.

“Music Publishers are usually the ones who bring the lawsuits, or, like in this case and many others, reach out to try and settle on a ‘writer's share’ agreement where the song's publishing is changed to in effect give writer's credit and a percent of the publishing/songwriter share, royalty money, to the previous party,” says Michael St. James, music publisher and licensing agent, founder of Better Ad Music. That’s what happened with the Sam Smith and Tom Petty situation.

“As a music publisher myself, the best outcome is to not spend the money in court, so the public spectacle is part of it.”

Who makes the decision in the end?

You do—or someone like you. Unlike in the U.K. or Canada, where these cases are decided by judges, the good, old-fashioned jury system prevails in America, for better or worse. Actually, for much worse, experts like George Howard, also a professor at Berklee, and the founder record label Rykodisc and TuneCore says.

After it’s determined that the second party would have reasonably had access to the first party’s work, which in this case with a big hit like “Creep” is clear, the legal definition they will work with is called substantial similarity. And to test for that they ask whether or not the lay person would reasonably detect enough similarities between two works to constitute infringement. In other words, there’s really no standard rules here.

“This is what drives non-lawyers crazy, there’s no bright line,” says Howard. “The common myth in the hip-hop world is if you sample x number of bars it’s fair use. That’s 100% incorrect. It will go in front of jury of layman, and they will go ‘I don’t know, it sort of sounds like ‘Creep,’ I guess.”

That’s why the cases are all over the map, says Cronin. “There is no standardization. It’s all a very impressionistic response and the courts are not really musically equipped to handle these decisions. They don’t come to this as musicians. If there were more educated musicians they would be able to identify the tinkering with musical information that the experts often engage in. They would also be able to recognize the fact, in my view, these popular songs have almost no protectable musical information to begin with.”

The problem is lay jurors are very heavily swayed by sound rather than music, he says. “So if something sounds the same it may not be. Jurors may often think ‘Well they sound the same so they must be substantially similar.’ I think this Radiohead case is a clear example of that.”

Did the Robin Thicke case screw everything up?

Very much so, most observers agree. “Robin Thicke was horrible. That was the worst decision ever,” says Harrington. There was no chord progression in common, no melody, no lyrics, no unauthorized samples. They argued that both songs used a cow bell, which is essentially musically meaningless in terms of protectable information. Instead, what the Gaye estate argued, was that Thicke and company had stolen the feel or the groove of the song. That has troubling implications for future musicians, and may play into the case against Del Rey, whose song is in fact similar-sounding in feel or mood to Radiohead’s.

“What was admirable about Thicke and Pharrell was they fought it,” Cronin says. “They said, no, we’re looking at larger picture, a precedent like this will make people increasingly vulnerable. The problem is it keeps feeding on itself.”

Indeed that has proven out over the time since that decision, he says, with at least 20 cases filed in court in 2017, a substantial jump over prior years. People see that there’s money to be made in these cases now, so why not try?

Will cases like this have a chilling effect on culture?

“Laws always lag behind culture. The culture goes This is ridiculous, then the laws, eventually, sometimes sort of catch up. That’s what’s going on with copyright right now. The laws are lagging behind what the culture wants to do. Where is the line where we go from homage to copying?”

“I think it’s a shame,” Hayes agrees. “I believe in the sanctity of copyright, but I also believe that in popular music, that everyone in this world was inspired by and edified by the songs they’ve heard before. There often isn’t that much variation. There’s not enough chords.”

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